Water and electric quarrels test the limits of tribal power

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The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Native American tribes have a patchwork of rights over utilities on tribal land. These rights flow from the original treaties that tribes negotiated with Congress as well as modern contracts between tribal members and non-members. This week, we highlight cert petitions that ask the court to consider, among other things, the claims of two tribes concerning the right to regulate water and power on their land.

The Colorado River flows through seven southwestern states and the reservations of several indigenous tribes, including the Navajo Nation. Use of the river’s water has prompted over a century of negotiations and lawsuits, not only between those states and tribes, but also involving the federal government. The court has held that the Department of the Interior can assert reserved water rights for Native tribes as part of the “trust obligations” stemming from an original tribal treaty. The government has done so on behalf of the Navajo Nation for water from two of the Colorado River’s main tributaries, but not from the river itself.

Claiming rights to water from the Colorado River’s mainstream, the Navajo Nation sued the government in federal court. The tribe argued that the government violated its trust obligations by asserting water rights for other tribes along the Colorado River but not for the Navajo. The government countered that it never entered any treaties with the Navajo Nation specifying the Colorado River. The U.S. Court of Appeals for the 9th Circuit agreed with the tribe. In Department of the Interior v. Navajo Nation, the government asks the justices to decide whether it owes the tribe an “affirmative” duty to assess its rights to the Colorado River.

Further north, the Crow Reservation spans a large section of southeastern Montana along the border with Wyoming. Many homes in the area receive power from the Big Horn County Electric Cooperative, one of thousands of federally funded arrangements under a New Deal-era program to bring electricity to rural Americans. When Crow Tribe member Alden Big Man repeatedly failed to pay his electric bill, the cooperative shut off his power. He sued the cooperative in tribal court, arguing that a Crow law requires the tribe’s approval before a utility can terminate service for any member of the tribe.

Native tribes generally lack jurisdiction to hear cases involving nonmembers. The court in Montana v. United States, however, recognized an exception for cases in which a nonmember enters a contract or other consensual commercial relationship with a tribe or its members. In Big Horn County Electric Cooperative, Inc. v. Alden Big Man, the cooperative asks the justices to decide whether the tribe’s claim to jurisdiction over a contract with a “federally regulated quasi-governmental entity” like itself blows the Montana exception out of proportion.

A list of this week’s featured petitions is below:

Department of the Interior v. Navajo Nation
22-51
Issue: Whether the federal government owes the Navajo Nation an affirmative, judicially enforceable fiduciary duty to assess and address the Navajo Nation’s need for water from particular sources, in the absence of any substantive source of law that expressly establishes such a duty.

101 Houseco, LLC v. United States
22-56
Issue: Whether a third-party claimant holding title to property that has been ordered forfeited as part of a criminal defendant’s punishment must be permitted, as a matter of due process, to challenge the underlying forfeiture order.

Big Horn County Electric Cooperative, Inc. v. Alden Big Man
22-62
Issue: Whether an Indian tribal court has subject-matter jurisdiction to adjudicate a tribally created claim as an “other means” of regulating a nonmember federally funded and federally regulated electric cooperative tasked with providing electrical service to all customers within its service territory, including tribal members on Indian reservations.

Marshal v. Texas
22-63
Issues: (1) Whether the Texas Court of Criminal Appeals’ application of the equitable doctrine of laches constitutes an independent and adequate state-law ground that bars review of petitioner’s constitutional claims; (2) whether the court’s application of laches violated petitioner’s right to due process of law; and (3) whether the prosecution is estopped from relying on the doctrine of laches when its misconduct caused the delay in filing the habeas corpus application.

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